Locked Out

The first prisons in New Zealand were established in the 1840s, and there are now 18 prisons nationwide.¹ According to the Department of Corrections, the prison population was 10,035 in March — of which, 50.9% are Māori, 32.0% are Pākehā, 11.0% are Pasifika, and 4.7% are “Other (incl. Asian).” Compare this to the ethnic breakdown of the general population — 74.0% are Pākeha, 14.9% are Māori, 11.8% are Asian, and 7.4% are Pasifika.

At present, prisoners serving a sentence in New Zealand are unable to vote, and the disproportionate rates of imprisonment mean disenfranchisement is racialised. Moreover, the disparity is increasing: the proportion of Māori imprisoned in 2016 was higher than any time in recorded history. Compounding that, New Zealand has one of the highest imprisonment rates in the western world. We are locking so many people, particularly Māori, out of our democracy.

The history of imprisonment in Aotearoa shows that the racial bias of our sentencing and imprisonment rates is not a new issue. After the Land Wars, hundreds of Māori were unfairly imprisoned and were never tried — some of whom were held in prisons until their death. Peaceful resistors at Parihaka were imprisoned for their actions, the most notable being Te Whiti, Tohu, and Tītokowaru. It wasn’t until earlier this year that descendents of the Parihaka community received a formal apology from the Crown. It took over 130 years for the people of Parihaka to receive an apology for the horrific injustices that their ancestors were subjected to by the colonial government. How long, then, is it going to take for us as a country to address and acknowledge the ongoing injustice of our prison system? How long will it take for us to actually listen to the voices of our prisoners?

Parihaka, at the time of the assault by the armed constabulary in 1881. William Andrews Collis. 1881. Alexander Turnbull Library.

The return of the ploughman prisoners to Parihaka Pā. The group of women on the left are swirling poi. William Andrews Collis. 1898. Alexander Turnbull Library.

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The law has changed back and forth a lot, with politicians and the public divided over whether or not prisoners should be able to vote. Initially, the Constitution Act of 1852 said that any prisoner who had committed “treason, felony, or infamous offence” could not. Subsequent alterations were made to legislation in 1879, 1905, 1956, 1975, 1977, and in 1993. The change in 1905 tightened the restrictions around voting, looking instead at the length of sentence rather than the type. In 1956, the law changed so that anyone serving a sentence at the time of an election was unable to vote. This was reversed in 1975, but then changed back again in 1977. In 1993, the legislation changed to re-enfranchise some prisoners, except for those who were sentenced to life, preventative detention, or for longer than three years.

In 2010, National Party MP Paul Quinn introduced the Electoral (Disqualification of Sentenced Prisoners) Amendment Bill. This Bill passed, changing the law back to preventing prisoners from voting; it also removed prisoners from the electoral roll. Despite the significance of the law change, the debates from the final reading are some of the most bizarre things I’ve read.

Quinn began by attacking the opposition, then moving on to give examples of people who have gone to prison, and finished by attacking people in ivory towers, as well as “champagne socialists.” He failed to actually give any sound reason as to why the Bill should pass — aside from a brief mention that it would, apparently, reduce crime statistics.

Labour MP Clayton Cosgrove counter-attacked Quinn, and threw a few zingers around. He managed to discuss the specifics of the Bill, unlike Quinn. He talked about how it was unlikely to reduce recidivism, or support victims. He also noted that it was essentially a political pamphlet; unsurprisingly enough, he noted that the only submission at the Select Committee stage in support of the Bill was from David Farrar. The debates raged on. Some speeches were bizarre, some empty, some tangential, some good.

Then it was time for the ACT Party to speak. Hilary Calvert stood up and said the following: “I cannot pretend this Bill is my favourite thing. Trevor Mallard leaving the House earlier, and not being able to vote while he was away, could count as my favourite thing. Perhaps popping a ping-pong ball in the mouth of the honourable member over there who all day keeps turning his head from side-to-side with his mouth open could count as my favourite thing. This Bill is not my favourite thing. However, ACT is supporting National on this Bill.” It was an utterly bizarre moment. Eventually, the Bill passed. It was regarded by many as meaningless, serving no purpose except to further alienate prisoners and remove their human rights just a little bit more.

Section 12 of the New Zealand Bill of Rights Act states: “Every New Zealand citizen who is of or over the age of 18 years — has the right to vote in genuine periodic elections of members of the House of Representatives, which elections shall be by equal suffrage and by secret ballot…” Enfranchisement is very clearly set out here. Attorney-General Chris Finlayson released a report to accompany the Bill about its human rights implications. In the second sentence of the report he wrote: “I consider that the Bill appears to be unjustifiably inconsistent with the electoral rights affirmed by s 12 of the Bill of Rights Act.” A bit further into the report he said, “The objective of the Bill is not rationally linked to the blanket ban on prisoner voting.” He then moved on, and said that “The irrational effects of the Bill also cause it to be disproportionate to its objective.” How preposterous that a Bill that the Attorney-General repeatedly called “irrational” and inconsistent with the Bill of Rights Act managed to pass through the House. The Human Rights Commission and the Law Society made similar points in their submissions to the Law and Order Select Committee when the Bill was being considered.

After reading this debate, I contacted each political party for comment on this matter — I wanted to know what each party’s stance on prisoner enfranchisement was, whether they think a lack of voting rights violates human rights, whether prisoner enfranchisement is a political priority for the justice/corrections portfolio, and what work — if any — they had been doing in regards to prisoner enfranchisement.

Green Party Justice Spokesperson (at the time of writing) David Clendon said that his party strongly opposed the legislation, as “it is an unnecessary and unjustifiable violation of human rights. It also serves to further alienate prisoners from the society that all but a very small number of them will eventually rejoin.” He said that there are a number of no- or low-cost changes that can easily undo a number of the National Party’s changes to the prison system. He also referred to the law as “mischief,” which I think is apt given the debates that occurred while it was being passed.

Labour Party Justice Spokesperson (at the time of writing) Jacinda Ardern also said that her party opposed the legislation. She emphasised that this Bill should never have come before Parliament, and that the Labour Party did what they could to prevent it at the time, and has tried to raise this issue a few more times since.

The Associate Minister of Justice, Mark Mitchell, said that Parliament carefully considered the Bill of Rights Act when debating the Bill, and that the Attorney-General “brought these implications to the House’s attention.” He said that the Government has no plans to amend the law, and noted that the Justice and Electoral Committee considered the issue after the 2014 election, but decided to keep the law as is. Referring to the removal of 10,000 people’s fundamental right to vote as “implications” seems inappropriate. Is this blasé attitude how the National Party approach all human rights? While I acknowledge that MPs and Ministers are incredibly busy people who are juggling a lot of different work and issues, it seems strange to me that anyone — particularly an elected official — can be so nonchalant about the removal of the right to vote from part of our citizenry.

I didn’t receive replies from New Zealand First, ACT, United Future, or the Māori Party.

If you’ve read this far, you might notice one really important thing missing — what do prisoners themselves think about this law? Often when we talk about different forms of justice, prisons, crime statistics, and our judicial process, we forget one vital part: what are the implications for those who are incarcerated? How do they feel about this? Has their opinion been sought? What effect will this have on them? Prisoners have nuanced thoughts, feelings, and opinions — their voices are important, especially when it comes to issues that directly impact their lives.

When I first started thinking about this piece, I was really keen to try and get in contact with some prisoners to chat about their thoughts on their inability to vote. We spent months trying but struggled to get in contact with anyone we could interview. I contacted every prisoner advocacy group I could find, called a number of prisons in the region, and tried to get in contact with Arthur Taylor, a prisoner who has taken legal action over the lack of voting rights afforded to prisoners. Communications staff from Rimutaka Prison told us that they don’t do this kind of thing. When we pressed them about access for journalists they said that they might allow access if you’re with North & South or some established magazine, but in this instance said no. Prisoners in New Zealand are ridiculously inaccessible.²

I contacted Dr Katie Bruce from JustSpeak about her thoughts on the disenfranchisement of prisoners. JustSpeak is a charity that works towards giving rangatahi a voice in discussions about the justice system. Their kaupapa centres around the belief that many people are not heard on important decisions in the justice system, especially those who are most directly impacted. When we spoke, Dr Bruce noted that the Court of Appeal recently upheld a High Court decision that the ban on prisoner voting does not align with the Bill of Rights Act — but that this was never in dispute. She said that “the Government agrees [that the law breaches human rights], but thinks that this is a case in which human rights should be limited.” She said that with the general election so close, we should all be calling for parliament to urgently (re)enfranchise prisoners, and that not allowing them to vote undermines the legitimacy of the vote itself. She noted that “the disqualification of prisoners from voting is founded in a belief that voting is a privilege, rather than a right, and in regulating the right to vote in this way it undermines the fundamental democratic principle of universal suffrage.” She said that “it is the universality of the suffrage that underpins representative democracies and gives legitimacy to the laws made by our representatives. Given the mass incarceration of Māori, prisoner disenfranchisement in New Zealand is racialised disenfranchisement.”

The Court of Appeal decision that Dr Bruce referred to came about following prisoner Arthur Taylor’s legal challenge to the disenfranchisement of prisoners in 2014. Following lengthy court proceedings, the High Court ruled that this blanket ban on the ability of prisoners to vote cannot be justified in a free and democratic society. The Crown was unimpressed with being told it had made some bad law, so the case went to the Court of Appeal. Earlier this year, the Court of Appeal upheld Taylor’s challenge. Prisoner disenfranchisement remains, but this was a pretty big moment for the way that our legal and legislative systems work, in regards to the separation of powers between the legislature and judiciary. It also shows that there are prisoners who are upset that they do not have the right to vote, and are willing to stand up and say that this law should not continue to exist.

I also contacted advocacy group No Pride In Prisons (NPIP) about their views on prisoner disenfranchisement. NPIP are a prison abolitionist and advocacy group. Spokesperson Emmy Rākete was straight to the point and very clear: “Removing prisoner voting rights is illegal. Everyone over a certain age in this country should have the right to vote. If we want to believe that this country has fair, just governance, the absolute minimum should be that everyone has the right to vote. At the moment New Zealand does not even meet that minimum, because thousands of people are being deprived of that right in prison.”

She said that New Zealand’s pattern of incarceration disproportionately affects Māori and Pacific people: “When incarcerated people are having their votes taken away, ethnic minorities are having their votes taken away. That is simply racist.” She also pointed out that “a number of prisoners have voiced concern about having their right to vote taken off them,” referencing Arthur Taylor’s victory at the High Court. “Incarcerated people are politically conscious people, they are part of this country, and they are owed the same rights that the rest of us have. This means freedom from the torture of solitary confinement and it means being able to vote.”

Disenfranchising prisoners silences the voices of some of our most vulnerable people. This needs to be part of a wider conversation that we have about the role of prisons, and the racially biased nature of our prison and justice systems. Election day — September 23 — is rapidly approaching. I hope that there’s at least a small group of us who are talking to our communities about the removal of prisoner’s voting rights this election cycle. We can, and need to, do better for them. Giving them back the right to vote would be a start.

When you go to cast your vote this election, spare a thought for the 10,000 people in prison who are being denied the right to have their voice heard. Voting is a right, not a privilege.

There are also four “youth justice residences” that are operated under Oranga Tamariki: Ministry for Vulnerable Children.

Many people end up in prison because of the effects of social exclusion and isolation, so further isolation is not going to be beneficial when it is eventually time for them to be released. Excluding people from their communities, support networks, and the world in general doesn’t seem like it can have any positive effect. Surely if our prison system took rehabilitation and social reintegration seriously, it would try to make sure prisoners are less isolated from the rest of us. Part of this, then, should be the accessibility that we have to each other. It should not be so frustratingly difficult for us to speak to prisoners, and for prisoners to speak to us. Community ties are so important for physical, mental, and social wellbeing. We should be promoting and encouraging these ties, not stifling them.

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